Sudama vs Satyendra Nath Modak

P.N. Mookerjee, J.—This appeal is directed against an appellate order, rejecting the Appellants objections u/s 47 of the Code of Civil Procedure, read with Sections 7(2) and 56 of the West Bengal Non-Agricultural Tenancy Act of 1949. The decree in question is, inter alia, for ejectment of the Appellant from the disputed land. It was passed as far back as June 20, 1944. There is no dispute that the said decree relates to non-agricultural land and in the decree itself there was a provision to the effect that, on the requisite deposit being made by the Appellant within the prescribed period of 30 days, its execution would remain stayed under the proviso to Section 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act. The deposit was duly made and, accordingly, the decree could not be put into execution while the said temporary Act remained in force.

The original decree-holder was one Panchanan Mukherjee in whose place the present Respondent, Satyendra Nath Modak, got himself substituted on February 17, 1948, on the strength of an assignment, dated February 16, 1945. The temporary Act having expired on or about May 5, 1949, the present execution was started on August 2, 1949, and, immediately thereafter, the Appellant judgment-debtor appeared and applied for and obtained an order for interim stay on August 11, 1949, (sic) on the same day, he filed objections u/s 47 of the Code of Civil Procedure, read with Sections 56 and 7(2) of the (sic) Agricultural Tenancy Act of 1949 which had com (sic) and from May 15, 1949, giving rise to Misce (sic) No. 216 of 1949. This Miscellaneous Case (sic) dismissed by the learned munsif by the order (sic) 1950 and that order having been confirmed on appeal (Misc. Appeal No. 518 of 1950 of the court of the District Judge, 24-Pargands) by the learned subordinate judge, 1st court, Alipore, on March 19, 1952, the judgment-debtor Appellant preferred this appeal to this Court on April 7, 1952.

The points which were set down for argument before the learned munsif were:

(i) Is the decree time-barred?, (ii) Is the execution proceeding void in view of on notice being served under Order XXI, Rule 22 of the CPC ?, (iii) Has the decree been satisfied in full?, (iv) Is the execution of the decree barred by the provisions of the West Bengal Non-Agricultural Tenancy Act?, (v) Has the opposite party any right to execute the decree ? and (vi) To what relief, if any, is the Petitioner entitled?

But, of them, point No. (v) was not pressed before the learned munsif who having decided against the present Appellant on all the points, the latter, as already stated, took an appeal to the learned District Judge, 24:Parganas. This appeal was eventually heard by the learned subordinate judge, 1st court, Alipore and, before this learned judge, four points appear to have been formulated, viz.,

(i) Is the petition for execution barred by limitation?, (ii) Is the execution petition liable to be rejected on the ground of non-service of notice under Order XXI, Rule 22 of the Code of Civil Procedure?, (iii) Is the Appellant entitled to the benefit of protection against eviction under the provisions of the West Bengal Non-Agricultural Tenancy Act? and (iv) Has the decree been satisfied?

But, of them again the first three only were pressed before the learned subordinate judge. On all these points, however, the learned subordinate judge affirmed the decision of the learned munsif and dismissed the tenant''s appeal.

The principal findings of the two courts below are as follows:

(1) that, in view of the provision for stay of execution contained in the decree itself, and, in view of Section 89 of the new Act of 1949 excluding for purposes of computation of the period of limitation, the period during which the temporary Act had remained in force, the effective starting point of limitation in the present case would be May 5, 1949 and, as the aplication for execution was filed within a short (sic) thereafter, viz., on August 2, 1949, the execution (sic) not time-barred:

(2) that non-service of the notice under Order XXI, Rule 22 of the Code of Civil Procedure, even assuming that it was necessary in the present case, was at best an irregularity and such irregularity had been amply cured when the judgment-debtor appeared and got full opportunity to object to the execution;

(3) that the judgment-debtor was not protected u/s 7(2) of the Act of 1949 which obviously had no application, it being nobody''s case that the origin of the tenancy was unknown or that it had commenced before the Transfer of Property Act, nor was he protected u/s 7(2) of the Act of 1949 as he had failed to establish that he was in possession of the disputed land for 12 years as required by the said section, read with Section 90 of the Act, and that no protection was also available u/s 7(5) as there was no pucca structure on the disputed land, nor u/s 7(3) or Section 7(4) as the judgment-debtor really held the land under a "lease in writing" for 4 years, beginning from February, 1938, which lease had expired by efflux of time and there was no case of "holding over", and

(4) that as the decree in question had not been passed in a suit for ejectment "for" or on the ground of "arrears of rent", but on the ground of termination or determination of the lease or tenancy by efflux of time, Section 56 of the Act of 1949 also was not applicable and no plea of protection was available under that section.

None of the above points or, more correctly, none of them, as they were placed before the courts below was urged in this Court in support of the appeal, but Mr. Mallick who argued the appeal raised two new contentions. He argued, first, that the decree which was being executed was void as it was passed in contravention of the mandatory provisions of Section 3 of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act which was in force at the time. His second argument was that the kabuliyat of 1938, under which the Appellant''s tenancy had come into existence, was not a bilateral document, as required by the third clause of Section 107 of the Transfer of Property Act, and, as such, it was invalid as a lease with the result that the Appellant must be taken to have held the disputed land "without a lease in writing" for over one year but less than 12 years and that he thus came u/s 9(1)(b) of the Act of 1949 and as, admittedly, there was no six months'' notice to quit as required by Section 9(1)(iii) of the said Act, he could not be ejected from the said land.

On behalf of the Respondent, Dr. Sen Gupta disputed the correctness of Mr. Mollick''s submissions and he also contended that Mr. Mollick''s second submission and in the ultimate analysis his first submission too, was barred by res judicata. Dr. Sen Gupta even went further and argued that, on the admitted facts before the Court, Section 88 of the Act of 1949 which, according to the Appellant, attracted the other provisions of the said Act to this case had no application.

Before proceeding further, I may at once say that this last contention of Dr. Sen Gupta and the second submission of Mr. Mollick, if it is to be examined on the merits, will certainly involve highly interesting and difficult considerations. In view, however, of the special facts and circumstances of this case, to which I shall presently refer, I do not feel called upon to enter into any such complex niceties. I shall assume for my present purpose that Section 88 of the present Act of 1949 applies to this case and I shall deal with it on the footing that the protection of the Act will be available to the Appellant if he satisfies the particular condition or conditions, prescribed in the corresponding section, provided, of course, that is not unavailable to him on account of the bar of res judicata. I shall also assume for my present purpose that the kabuliyat of 1938 would not be a valid lease or, in other words, that the Appellant may be deemed to have held the disputed land "without a lease "in writing", unless such a contention be barred in the present case by reason of the doctrine of res judicata. The range of controversy will thus become considerably narrowed and the two questions which will have to be decided are: (i) whether the decree itself was void, as urged by Mr. Mallick in his first contention, or, rather, and this is more precise or accurate, whether that question, namely, the question of the validity or invalidity of the decree for ejectment is concluded against the Appellant by res judicata and (ii) whether the foundation of his second argument, namely that the kabuliyat of 1938 was invalid as a lease and that, accordingly, the disputed tenancy was one "without a lease in writing", is also hit by the same doctrine of res judicata. On both these questions, I am clearly against the Appellant and hence this appeal must fail.

I would now proceed to state my reasons:

It appears that, in the ejectment suit, there was an express issue to the following effect, viz., "is the suit liable to be stayed under the provisions of the Bengal Non-Agricultural Tenancy "(Temporary Provisions) Act?" (vide, Issue No. 5)." On that issue, the Appellant (who was the Defendant there) strenuously contended that the ejectment suit before the court was not a "suit for ejectment on account of the non-payment of rent" and hence it came under the main part of Section 3 of the temporary Act, and not under its proviso-for purposes of "stay" and, as such, it was liable to be stayed under that mandatory provision. The contention appears to have been quite correct in view of the latest Bench Decision of this Court in the case of Sm. Rajabala alias Menakabala Dassi v. Sm. Sukumari Debi and Aer. (1947) 51 C.W.N. 688. But unfortunately for the Appellant it was overruled by the court and the suit was proceeded with and eventually decreed in spite of Section 3. The court held that, as the Appellant was in arrears in the matter of payment of rent, it was a "suit for "ejectment on account of the non-payment of rent" within the meaning of the said Section 3 (including its proviso) and fell within the said stahutory proviso and not within the main part of the said Section 3 for purposes of "stay". The court found that the words "suit for ejectment on account of the non-payment of "rent" in the body of Section 3 of the Act contemplated and actually meant a suit for ejectment of a tenant who was in arrears and covered ejectment on any ground whatsoever if the tenant was in arrears. In effect, the court held that, although ejectment had been sought for on the ground of determination of the tenancy by efflux of time, as the tenant was in arrears, the suit for ejectment came within the phrase, quoted above, and. in that view of the matter, it overruled-though possibly quite wrongly as it now appears, (vide, Raja Bala v. Sukumari Debi (1) already cited) the defence plea of stay of the suit under the main part of Section 3 and merely provided, in the ejectment decree which it eventually passed for stay of execution under the proviso to that section. In my opinion, this express decision of the court precludes the Appellant from alleging now that the ejectment suit was liable to be stayed and from contending, accordingly, that the decree passed therein was void as it was made in contravention of a mandatory statutory provision. The above decision of the learned munsif became final as there was no appeal taken from it by the Appellant, and, thereafter it was no longer open to him to contend that the decree was made in contravention of the provisions of Section 3 and was void on that ground. Mr. Mallick''s first point cannot, therefore, succeed, it being really concluded against him by res judicata by reason of the decision in the suit itself. I, accordingly, overrule the said contention.

On the second question, too, the position is substantially similar. In the suit, the Plaintiff''s case was that the Appellant''s-tenancy was for a fixed term of 4 years under the registered lease, evidenced by the kabuliyat of 1938, and ejectment was sought on the ground that the said lease had expired by efflux of time and, although the Plaintiff gave a "notice to quit", it was given on the footing that "the lease had expired by efflux of "time and on and from the expiry of the 4 years, mentioned in "the kabuliyat, the tenant Appellant had become a trespasser". The defence, however, did not question the validity of the lease, but merely contended that the notice was invalid and insufficient. The learned munsiff held, in effect, that the kabuliyat of 1938 created a valid lease which expired, according" to its terms, by efflux of time on the expiry of the 4 years, limited thereby, and that the notice which merely stated that the tenancy had expired "by efflux of time inasmuch as the "limited term of the tenancy expired with the expiry of "February 7, 1942, and, accordingly, the Defendant was to "vacate the land in suit on the expiry of that date" "was valid, "legal and sufficient". In my opinion this decision of the learned munsif was a direct and clear pronouncement on the validity of the kabuliyat of 1938 as a written and registered lease which is binding on the parties and operates as res judicata in subsequent litigations and also in the subsequent stages of the same litigation-vide, in this connection, the cases of (1881) L.R. 8 I.A. 123 (Privy Council) . Ram Kripal Shukul v. Mst. Rup Kuari (1883) L.R. 11 IndAp 37 and (1921) ILR 48 499 (Privy Council) .

Even if it be conceded that the above decision of the court on the question of the "notice to quit" was no pronouncement, on the validity of the kabuliyat of 1938 as a written lease and would not therefore, operate as actual res judicata on the said question the Appellant''s position would, in my opinion, be no better in law. The same would really shift from actual to constructive res judicata but the over-all picture would remain the same in substance and in effect.

It is quite clear from what I have stated above that the ejectment suit was brought on the specific allegation that the kabuliyat of 1938 was the lease-the written lease-between the parties and ejectment was claimed on the ground that, under the terms of the said lease (kabuliyat), the suit tenancy had terminated by efflux of time on the expiry of the four years'' period, mentioned therein. There was no other allegation of termination of the tenancy and on the admitted facts also, the tenancy cannot be said to have terminated and could not have been held to have terminated except on the footing that the kabuliyat was a valid lease and the fixed term of 4 years thereunder had, as a matter of fact, expired. Obviously, therefore, the validity of the kabuliyat as a lease which is now pleaded would have been a complete answer to the landlord''s claim for ejectment and this plea, if good on the merits, as it is now contended on behalf of the Appellant, was not only open as a defence in the ejectment suit but it was also incumbent upon the Appellant to take it as such defence. The plea was one which "might and ought" to have been taken in the suit itself and if so taken and found good by the court and that is what the Appellant now contends, namely, that the plea was good, it would have entailed a dismissal of the suit. In these circumstances, it seems to me that the plea that the kabuliyat of 1938 did not constitute a valid lease because of contravention of the provisions of the third clause of Section 107 of the Transfer of Property Act is at least barred by constructive res judicata and it is no longer open or available to the present Appellant.

I hold, therefore, that the basic assumption on which the Appellant''s second contention is founded, namely, that the kabuliyat of 1938 was not a valid lease, and that, accordingly, there is no "lease in writing", on which the Appellant''s tenancy rests, is unavailable to him because of the bar of res judicata and necessarily, therefore, his said contention cannot be accepted. The fact that the Act of 1949 is a later legislation or a subsequent event is no answer to this bar of res judicata and cannot override or get rid of it inasmtich as what is res judicata is the question of the validity of the 1938 kabuliyat as a lease and, on that part of the case, there has been no change of law whatsoever. The third clause of Section 107 of the Transfer of Property Act, on which the Appellant''s present challenge is based, was admittedly on the statute book when the ejectment suit which eventually culminated in the decree, now impugned, was filed, heard and decided, and it is not possible to argue that, on the question of the validity or otherwise of the kabuliyat of 1938 as a lease, there has been any change of law which would permit the reopening of the said question between the Appellant on the one hand and the Respondent on the other. The bar of res judicata cannot thus be avoided by the Appellant and his second contention also must fail.

In the course of his reply to the Respondent''s arguments, Mr. Mallick also raised the point of applicability of Section 89 of the Act of 1949 to the present case and he submitted that that section would not apply here and hence the Respondent''s application for execution which was filed on August 2, 1949, that is, long beyond three years from the "date of the decree" in question, viz., June 20, 1944, would be time-barred under the relevant Article 182 of the Indian Limitation Act. I do not think that there is any substance in this new argument. Admittedly, execution of the decree in the present case "was stayed under the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act 1940 (Bengal "Act IX of 1940)" and clearly, therefore, the case is well within the plain terms of the said Section 89 and, that being so, there can be no question as to its applicability here to save limitation and as, undisputedly, the making of the application for execution would be well within three years from the "date of the decree", if the relevant period u/s 89 of the 1949 Act be excluded, no question of limitation would arise. It seems to me further that, even apart from Section 89 of the West Bengal Non-Agricultural Tenancy Act of 1949, that is even assuming that that section would not here apply, limitation would be saved by Section 15(1) of the Indian Limitation Act which would on its express terms exclude "the time of the continuance of the ''stay order'' that is, the period between June 20, 1944, on which date the execution of the decree was stayed by the court, and May 5, 1949, when the ''stay order'' spent itself or automatically lapsed on the expiry of the Bengal Non-Agricultural Tenancy (Temporary Provisions) Act 1940 and was thus, in the eye of law, "withdrawn" within the meaning of the said Section 15(1) of the Indian Limitation Act, and on such exclusion being made, the application for execution would be clearly within time. Mr. Mallick''s new argument must also, therefore, fail and I reject it without the least hesitation.

What I have said above, disposes of all the contentions urged by Mr. Mallick in support of the appeal. No other point was argued by him but, before I conclude this judgment, I feel it my duty to say a word about Section 56 of the West Bengal Non-Agricultural Tenancy Act of 1949. That section forbids ejectment "for arrears of rent", which obviously means ejectment on the ground of arrears of rent, where it is otherwise available or permissible. It may be argued that, in the present case, the Court passed the decree for ejectment-though wrongly, "for" or on the ground of "arrears of rent" and that decision operates as res judicata in the Appellant''s favour on the question of applicability of Section 56 of the Act of 1949 to this case. The argument seems plausible at first sight, but it does not bear scrutiny. As I have already said, in the ejectment suit, what the learned munsif actually found and held, in effect, was that the Plaintiff was entitled to ejectment, only on the ground of determination of the tenancy by efflux of time, but, as the Appellant was in arrears in the payment of rent, the case fell within the words "suit for ejectment on account of the nonpayment of rent", as used in the body of Section 3 of the temporary Non-Agricultural Tenancy Act. The learned munsif, on that occasion, also made it abundantly clear that he was making a distinction between a suit for ejectment "for" or on the ground of "arrears of rent" and a "suit for ejectment on account of the "non-payment of rent", as used in the said Section 3, and he chose to follow, on the point, the decisions of this Court in the cases of Kumar Purnendu Nath Tagore and Ors. v. Narendra in Nath Samanta (1940) 45 C.W.N. 22 and Radhikalal Goswami and Ors. v. Gopeswar Busu (1942) 46 C.W.N. 1025 in preference to the cases of Provabati Debi and Ors. v. Protap Chandra Majumdar and Ors. (1941) 45 C.W.N. 991 and The Reliance Jute Mills Company Ltd. v. Dukhi Shaw and Ors. (1942) 46 C.W.N. 889 and he held that, where the suit for ejectment was on a ground other than. arrears of rent, but the tenant was in arrears, it was still "a "suit for ejectment on account of the Non-payment of rent" within its statutory proviso, and, in that view of the matter, he held that the present case fell within that proviso. It is quite true that, possibly, the view of law, adopted by the learned munsif, can no longer be held to be correct, vide-Sm. Rajabala alias Menakabala Dassi v. Sm. Sukumari Debi and Anr. (supra). But that is beside the point on the question of res judicata. The learned munsif ''definitely found that the suit for ejectment in the present case was not a suit for ejectment "for" or on the ground of "arrears of rent" though it was still a "suit for ejectment on "account of the non-payment of rent" in the light of the distinction noted above, and, accordingly, I am unable to hold that, by reason of the decision in the suit, the decree for ejectment, passed against the Appellant must be taken to have been made "for" or on the ground of "arrears of rent" as contemplated in Section 56 of the 1949 Act. This is apart from the question whether the plea of res judicata would be at all available in this matter in view of the intervening change of law, affecting this part of the case, from the temporary Act, which remained operative from May 30, 1940 to May 4, 1949, to the present Act of 1949 which came into force on May 5 1949- vide in this connection the case of Profulla Chandra Vs. Prabartak Trust, .

Clearly also Section 56 of the Act of 1949 would not, by its own force, apply to this case as "ejectment for arrears of rent" would not include "ejectment on the ground of determination of the "tenancy by efflux of time", even though the tenant be in arrears-vide, Prabhabati Devi v. Pratap Majumdar (supra) Reliance Jute Mills Company Ltd. v. Dukhi Shaw (supra) Rajabala v. Sukumari (supra) already cited.

I hold, accordingly that Section 50 of the West Bengal Non-Agricultural Tenancy Act of 1949 will not apply to the present, case, and can afford no protection to the Appellant.

I have assumed for purposes of this case that Section 88 of the Non-Agricultural Tenancy Act of 1949 would he attracted where, as in the present case, execution of the decree for ejectment was stayed by the decree itself till the expiry of the earlier temporary statute of 1940. In the view which I have taken on the Respondent''s plea of res judicata, it is not necessary to examine the merits of Dr. Sen Gupta''s contention against the validity of the said assumption. I may just point out however, that the Respondent''s argument on this point has the support of a judgment of Chunder, J.: (Vide-Biswanath Dawn v. Sm. Dharmabala alias Dharmarani Kaharin) S.M.A. No. 80 of 1951 decided on March 3, 1954 (unreported), and, as late as the-11th of this month, the same view has been affirmed by a Division Bench, presided over by Das, J., (vide, Jadunath Das v. Mrinal Kanti Saha and Ors.) S.M.A. No. 76 of 1950decided on September 3, 1951 (unreported).. As, however, this Bench decision was not available during argument in this case, and as this appeal fails on the Respondent''s other plea of res judicata. I have preferred not to rest my judgment upon the said Bench decision.

In the result, then, this appeal must fail, and it is dismissed.

In the circumstances of this case, however, the parties will bear their own costs in this Court as well as in the courts below.

Leave to appeal under Clause 15 of the Letters Latent is asked for find it is refused.